“The central question we face today is: Who decides?”  So began the majority opinion in the Supreme Court’s recent decision to block implementation of OSHA’s covid regulation.
Although the dissent vigorously disagrees with the majority’s decision, it agrees about what is the central issue in the case:  “Underlying everything else in this dispute is a single, simple question:  Who decides how much protection, and of what kind, American workers need from COVID–19?”
The “who decides” issue frequently arises in our dispute resolution field.  There is a body of legal doctrine about whether courts or arbitrators should decide various arbitration
Continue Reading Who Decides

This is a sequel to my post last week, My Covid Perceived Injurious Experiences (PIE).  It describes more PIEs and critiques the Supreme Court’s ghastly decision blocking implementation of the OSHA regulation protecting employees of large employers.
I wanted to publish my post last week to express perspectives that a lot of people share and to help validate their justified anger and frustration.  Clearly, many people feel the same way as I described.
I want to thank everyone who sent notes wishing me well after my mild bout of covid.  My wife, adult kids, and I don’t have covid symptoms
Continue Reading More Covid PIEs and the Alice-in-Wonderland Supreme Court Decision Endangering Workers

Bernie Mayer and Jacqueline N. Font-Guzmán wrote a new book, The Neutrality Trap: Disrupting and Connecting for Social Change.  Here’s an excerpt from the flyer:

The message at the heart of The Neutrality Trap is that the wisest and ultimately most effective way to deal with our most profound problems is to avoid the lure of easy solutions or premature peace.  We need to reach out across our differences but we also need to disrupt the forces that sustain the exploitation of people and the environment.  Holding the tension between connecting and disrupting is crucial if we are to
Continue Reading The Neutrality Trap

Thanks to BFOI Peter Reilly (Texas A&M) for gathering this winter’s compilation of current ADR scholarship projects: Kelly Browe-Olson (University of Arkansas Little Rock William H. Bowen School of Law) In progress: Family Dispute Resolution Handbook, co-edited with Peter Salem for Oxford University Press, Including Intimate Partner Violence and FDR, co-written with Nancy Ver Steegh … Continue reading ADR Scholarship Projects (Winter 2021-22) →
Continue Reading ADR Scholarship Projects (Winter 2021-22)

Peter Reilly’s call for updates on our scholarship prompted me to create the following lists of short articles and blog posts I wrote this year.  You might want to read some or see if any would fit into your syllabi as required or recommended readings addressing your teaching goals. The following pieces focus directly on … Continue reading Short Pieces You Might Want to Read →
Continue Reading Short Pieces You Might Want to Read

It was front-page news in the New York Times that NYC Mayor-elect Eric Adams said that emotional intelligence is his “No. 1 criteria” for selecting top officials in his administration.  He decided that top administration officials must be filled by the “emotionally intelligent,” deliberately downplaying more commonplace credentials, like academic achievement and government experience. … … Continue reading Wanted: Public Officials with Emotional Intelligence →
Continue Reading Wanted: Public Officials with Emotional Intelligence

From Elayne Greenberg:
About the Dispute Resolution Advancement AwardGiven annually through the Hugh L. Carey Center for Dispute Resolution at St. John’s Law, this $5000 Award honors scholars and practitioners whose published empirical research has furthered the advancement and understanding of the values and skills of dispute resolution.
Nomination CriteriaYou are invited to nominate research (your own or someone else’s) published in a nationally respected journal between November 1, 2019 and November 1, 2021. The research should have broad applicability to the dispute resolution field, and includes interdisciplinary research. You can also nominate research focused on dispute resolution in a
Continue Reading Call for Nominations for 2022 Dispute Resolution Advancement Award

From FOI Imre Szalai:
Yesterday, the Supreme Court added yet another arbitration case to its docket, Viking River Cruises v. Moriana, No. 20-1573, which deals with the clash between the FAA and California’s Private Attorney General Act (PAGA).  Under PAGA, California courts have allowed workers to pursue representative claims in court against employers on behalf of other workers, even if the workers were bound by bilateral arbitration agreements.   These PAGA cases treat the state of California as the real party in interest, and because the state is not bound by a private arbitration agreement, these state cases tend to
Continue Reading Another Supreme Court Cert Grant

FOI Imre Szalai (Loyola- New Orleans) sent an email around on the DLRE Listserv this past Friday and, with his permission, I am posting it here for readers of the blog:
Hi everyone,
The big news out of the Supreme Court today involved the Texas abortion ban, but the Court also added some new arbitration cases to its docket.
In one case, the Court will decide the scope of the “transportation worker” exemption from Section 1 of the FAA (Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods
Continue Reading Supreme Court Grants Cert in Three Arbitration-Related Cases

To resolve a dispute, one or more people need to change their minds.  Negotiation and mediation involve techniques to help people do just that.
Obviously, this can be very difficult.  People have reasons for their positions and they may not change them easily.
This post focuses on two approaches for changing minds, which are highlighted in a recent NPR TED Radio Hour podcast.  Wharton Professor Adam Grant, the author of Think Again:  The Power of Knowing What You Don’t Know, provides very practical advice to help people make better decisions.  Smith College professor and civil rights advocate
Continue Reading What I’m Reading – Changing Minds

People in every demographic group and every part of the country became hooked on powerful drugs.  Many lost their jobs, savings, homes, and families and they became ensnared in the criminal justice system.  Hundreds of thousands died from drug overdoses.  Communities were decimated.
The drug pushers were protected by high-powered lawyers like Mary Jo White, Eric Holder, and Rudolph Giuliani, as well as battalions of lawyers from some of the most prestigious law firms in the country.
Who are these drug dealers?  Brown-skinned drug lords from Latin America?
Of course not.
The legal clients are a network of privately-owned drug
Continue Reading What I’m Reading – High-Powered Lawyers Protecting a Ruthless Drug-Dealing Mob

It’s a damn miracle that people ever understand each other.
A recent episode of the This American Life podcast provides ample illustration.  Entitled, What We’ve Got Here is Failure to Communicate, the podcast tells several, mostly discouraging, stories.  (Click here for the source of this phrase.)
One story describes special challenges due to the covid pandemic.  In a Chicago high school where many of the students are not native English speakers, the teacher has a particularly hard time communicating with her students.  They experience a common problem in classrooms around the country:  everyone is masked, muffling people’s words. 
Continue Reading What I’m Reading – What We’ve Got Here is Failure to Communicate

From Debra Berman:
Dear colleagues,
I hope you all had a wonderful holiday.  As we get back into the swing of things, I’d like to take this opportunity to remind you about an event this week.  Please join the ABA Legal Education in Dispute Resolution (LEDR) Committee for its inaugural DR professor virtual meet-up this Thursday, December 2nd at 1:00pm EST.
All DR-related professors, from every part of the academic spectrum, are welcome and encouraged to join.
These meetups, which will take place quarterly, will provide a virtual space to connect with each other about what we are teaching, how
Continue Reading DR Professor Meet-Up Thursday, Dec. 2 at 1 EST

From Debra Berman:
I know there have been many discussions over the years regarding how to effectively use simulations in negotiation and mediation classes.  After reflecting on my semester, I’d like to take this opportunity to reopen the conversation and provide you with my perspective.
This year, I decided to substantially change how I utilize simulations in my mediation class which meets once a week for three hours.  Now, my students do two and a half hour mediations of actual pending lawsuits.  The students receive the Complaint and MtD or MSJ, along with any other relevant documents such as discovery
Continue Reading Simulations Based on Actual Cases – Why Reinvent the Wheel?